On August 23, 2013, the Occupational Safety and Health Administration ("OSHA") proposed two rules meant to limit employees’ exposure to respirable crystalline silica: a potentially harmful substance that is released into the air when workers cut silica-containing materials like concrete or rock, such as in hydraulic fracturing ("fracking") and in many other operations. Crystalline silica is abundant in workplaces across America. OSHA estimates that approximately 2.2 million workers are exposed on a day-to-day basis, and it has long sought to protect those workers through enforcement of permissible exposure limits ("PELs"), among other means. Now, through its newly announced rules–one targeting construction work, and the other targeting general industry–OSHA would reduce its PELs and require that employers take additional, extensive measures to prevent exposure.

Currently, OSHA’s PELs for respirable crystalline silica range from approximately 250 µ/m3 (for quartz silica in construction contexts and shipyards) to 50 µ/m3 (for crostobalite and tridymite silica). OSHA’s proposed rules would replace these limits with an across-the-board PEL of 50 µ/m3 for all covered industries (i.e., a reduction by as much as 400%). Additionally, OSHA’s proposed rules would introduce new measures meant to prevent exposure, such as a requirement for initial and recurring "exposure assessments" (beginning at an "action level" airborne concentration of 25 µ/m3), medical surveillance requirements, communication and training requirements, and recordkeeping requirements to document employers’ compliance measures. Perhaps most importantly, OSHA’s proposed rules would require that employers use "engineering and work practice controls" to reduce employees’ exposure below the PEL unless doing so is demonstrably infeasible. This would preclude reliance on respirators, which for most employers is the preferred means of complying with PELs. Moreover, the cost of such "engineering controls," according to OSHA’s conservative estimate, would approach $1 billion.

As a new and rapidly growing industry centered on silica-releasing activities, the fracking industry may have the most cause for concern. It remains to be seen whether evolving fracking technology can incorporate "engineering controls" to achieve previously unheard-of reductions in silica exposure, and what the effect would be on the industry’s bottom line. OSHA did not even consider fracking in its preliminary economic analysis ("PEL"); it only purported to consider fracking in an appendix belatedly attached to its proposed rules. Many other industries would face similar dilemmas. It seems unlikely, for example, that a concrete block company could widely incorporate "wetting down work operations," which is one of OSHA’s suggested engineering controls. The concerns these rules potentially present for industry are all the more serious considering that most of OSHA’s proposed requirements would become enforceable 180 days after a final rule is adopted, with "engineering controls" necessary after one year.

OSHA proposed standards of this magnitude are a rare occurrence. The only obvious historical analogue is OSHA’s ill-fated ergonomics regulation, which purported to monitor and control "repetitive motion" in all American workplaces before Congress invalidated that regulation in 2001. OSHA’s current proposed rules were held for review by the gatekeeping Office of Information and Regulatory Affairs ("OIRA") for two years before publication, which demonstrates both their breadth and complexity, and the likelihood of concern within the business community.

OSHA is currently soliciting comments on its proposed rules; the comment period will close 90 days after they are published in the Federal Register.

Gibson Dunn is uniquely positioned to assist clients with respect to OSHA’s proposed rules on crystalline silica.The American Lawyer named Gibson Dunn its top-ranked firm for Labor and Employment litigation in 2012, and no other firm is better known for its ability to help the world’s most prominent companies tackle their most challenging labor and employment matters.In the area of Occupational Safety and Health, Gibson Dunn has been on the leading edge of the most important issues of the last 15 years.We represented numerous leading companies and industry associations in successfully challenging OSHA’s ergonomics regulatory efforts, for example.We also successfully challenged OSHA’s controversial "Cooperative Compliance Program" in an innovative lawsuit that today is regularly taught in law school courses.

Gibson Dunn’s Administrative Law and Regulatory Practice Group brings additional relevant expertise.We regularly challenge rulemaking efforts by a wide array of federal agencies–including the SEC, the FCC, the NLRB, and the ICC (in addition to OSHA)–and our efforts have had precedential effects.For example, all the leading cases on the SEC’s responsibility to consider "efficiency, competition, [and] capital formation" are ones that we handled and won: Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011); American Equity Inv. Life Ins.Co. v. SEC, 613 F.3d 166 (D.C. Cir. 2010); and Chamber of Commerce v. SEC, 412 F.3d 133 (D.C. Cir. 2005).This experience gives us a unique ability to identify the potential weaknesses in agency regulations, and to build a compelling record during the comment period.